Alan Moore and Minister for Infrastructure and Regional Development
[2014] AATA 718
•30 September 2014
[2014] AATA 718
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4882
Re
Alan Moore
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Mr S Penglis, Senior Member
Date 30 September 2014 Place Perth The reviewable decision dated 12 September 2013, to not approve the Applicant's application to import a 2006 Mercedes Benz E500 motor vehicle, is hereby affirmed.
.....(Sgd) S Penglis............................
Mr S Penglis, Senior Member
Catchwords
TRANSPORT - importation of motor vehicle not owned by the applicant while overseas for a continuous period of at least 12 months - discretion not exercised in favour of importation - turns on its own facts
Legislation
Motor Vehicle Standards Act 1989 (Cth), section 19
Motor Vehicle Standards Regulations 1989 (Cth), regulations 11 and 13
Cases
Lewis and Minister for Infrastructure and Transport [2013] AATA 283
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43
REASONS FOR DECISION
Mr S Penglis, Senior Member
30 September 2014
This is an application to review a decision made by the Administrator of Vehicle Standards (Administrator) dated 12 September 2013 to not approve the Applicant’s application to import a 2006 Mercedes Benz E500 motor vehicle (Vehicle) into Australia from the United Kingdom.
It was not in dispute in these proceedings that the Applicant has not satisfied the Motor Vehicle Standards Regulations (1989) (Regulations) enacted under the Motor Vehicle Standards Act (1989) (Act) in that he has not owned the Vehicle while overseas for a continuous period of at least 12 months immediately before arriving in Australia.
The Administrator considered that the Applicant’s circumstances did not warrant exercising the discretion under regulation 11 of the Regulations.
The sole contention of the Applicant in these proceedings was that the Administrator ought to have exercised, and that the Tribunal should now exercise, the discretion under regulation 11 in favour of the Applicant so as to approve the Applicant’s application to import the Vehicle.
For the reasons which follow, the Tribunal is not prepared to exercise the discretion under regulation 11 in favour of the importation of the Vehicle.
Facts
Most of the relevant facts were uncontentious. They were conveniently set out in paragraphs 4-16 of the Respondent’s Statement of Facts and Contentions in the following terms:
“1 The Applicant applied to the Minister on 18 May 2009 for approval under regulation 13(1) of the Regulations to import the Vehicle (T4). The application was received by the Department of Infrastructure and Regional Development (Department) on 20 May 2009. This was before the Applicant left Australia on 19 June 2009 (T16).
2.On page 3 of the application (not included in the Section 37 documents provided on 7 November 2013 - now attached at Appendix 1) the Applicant indicated the date he was returning to Australia was 23 August 2009 and the date he intended to stop using the Vehicle overseas was 28 June 2010.
3.On 11 June 2009 the Respondent requested further information via fax from the Applicant in relation to the import application (T9). A further request for this information was sent via email by the Respondent to the Applicant on 9 November 2009 (T15).
4.In response to a further request from the Respondent dated 30 April 2012, the Applicant provided a statement that he travelled to the United Kingdom on 19 June 2009 (T16).
5.On 22 June 2009 the Applicant purchased the Vehicle (T19). The Vehicle is not fitted with an identification plate.
6.In an email to the Administrator dated 14 May 2012, the Applicant stated that he left the United Kingdom on 27 June 2009 on a cruise to Europe before returning to the United Kingdom on 11 July 2009. The Applicant again left the United Kingdom on 29 July 2009 and returned 12 August 2009. The Applicant departed the United Kingdom on 19 August 2009, stopping over in Singapore for three days before returning to Australia (T16). This travel itinerary was confirmed again by the Applicant in a further email to the Administrator on 17 May 2013 (T27).
7.In an email to the Applicant dated 24 May 2013, the Administrator provided a provisional assessment of the application, stating that the application failed to meet the requirements of the Personal Import Scheme as the Applicant has not used the Vehicle overseas for 12 continuous months (T28).
8.In an email to the Administrator dated 30 May 2013, the Applicant sought the exercise of discretion by the Minister under regulation 11 of the Regulations to approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate. In his email the Applicant cited issues with his own health, the health of his mother and that the Vehicle was special to him as reasons for the exercise of the discretion (T30).
9.A medical statement from Dr Gerry Maguire of Modern Medical Clinics, Halls Head, Western Australia, dated 5 June 2013, states that the Applicant had to return to Western Australia on 22 September 2009 because of prostate/bladder problems and pain/swelling in the groin (T41). The Respondent contends that the date on the medical statement is an error and the correct date should be 22 August 2009.
10.On 12 September 2013, the Administrator decided not to approve the Applicant’s application as the Applicant had not satisfied the requirements of paragraphs 13(1)(ac) and 13(ad) of the Regulations, nor was the Administrator satisfied that there were sufficient grounds to warrant the exercise of the discretion under regulation 11 (T44).
11.In an email from Mr Brad Moore (the son of the Applicant who had been assisting the Applicant throughout the application and appeal process) to the Department dated 9 December 2013, Mr Brad Moore provided a timeline the Applicant’s health issues, with supporting documentation (Appendix 2). The email identified the following health related episodes of the Applicant:
(a) October 2006 – Transurethral resection of the prostate
(b) June 2007 – Transient Ischaemic Attack
(c) 2009 – Return from the United Kingdom after being advised by a UK doctor return to Australia to see specialist.
(d) October 2011 – Cystoscopy
(e) April/May 2012 – Sleep apnoea and diabetes
(f) October 2012 – Testosterone deficiency and fatty liver
(g) December 2013 – Swelling in prostate with groin pain
12. In an email from Mr Brad Moore to the Department dated 17 December 2013, Mr Brad Moore stated that the Applicant had recently been diagnosed with prostate cancer. The email also included a further medical statement from Dr Gerry Maguire of Modern Medical Clinics, stating that the Applicant after returning to Australia in September 2009 received ongoing treatment for a severe bladder infection, swelling of the testes and a hernia and swelling of the prostate (Appendix 3).
13. In an email from Mr Brad Moore to the Department dated 27 February 2014, Mr Brad Moore stated the travel by the Applicant in the United Kingdom during June and August 2009 was a short holiday, and that the Applicant had planned to return to the United Kingdom, however was unable to due to his serious health issues (Appendix 4).”
The Tribunal makes findings of fact in those terms.
Law
Regulation 13 (as in force at the time) relevantly provided that the Respondent must approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate if various matters are satisfied, the relevant being (a), namely “the vehicle has been owned and used by the applicant for a continuous period of at least … 12 months”.
By section 19 of the Act and regulation 11 of the Regulations, the Minister is given a general discretion to approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate. That approval may be given subject to conditions. The wording of regulation 11 is general and neither the Act nor the Regulations set out specific factors to be taken into account in applying it.
There was no dispute before the Tribunal that, in determining this matter, the Tribunal ought have regard to and apply the decision of Mansfield J of the Federal Court of Australia in Selway and the Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43.
At [39] of the Reasons for Decision in Selway, His Honour stated as follows:
“In my view it was an error of law for the Tribunal to construe the apparently unlimited discretion in Reg 11 so that, even where the policy or objectives of the legislative scheme were not undermined, there had to be some exceptional or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that Reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation”.
Earlier, at [37], His Honour held as follows:
“It may well be that it will not be a common circumstance that a person seeking to import a non-standard vehicle will have the discretion available under Reg 11 exercised in that person’s favour. In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act. Clearly, in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty countervailing factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11.”
The Tribunal also notes that, although it was unnecessary for His Honour to do so given his other findings, in Selway, Mansfield J also held as follows (at [43]):
“I observe in relation to asserted error (3) that there does appear to be some logical error or some misunderstanding of Mr Selway’s case in the way the Tribunal approached the “unexpected events” topic in its reasons. If a person acquires a non-compliant motor vehicle overseas intending to seek to import it into Australia within the succeeding 12 month period, that would obviously be a factor against exercising the discretion under Reg 11. That is not this case. When he purchased the car, Mr Selway expected, and had good reason to expect, that he would own it for more than 12 months before he sought to import it into Australia. He expected to satisfy the criteria under Reg 13. The “unexpected” event was the job offer. The Tribunal said at [34] that the job offer and its acceptance was “not an unexpected event” because it was “an event over which he had complete control”. It appears, therefore, to have discounted those circumstances in deciding whether to exercise the Reg 11 discretion in his favour. In my view, the circumstances giving rise to the earlier than anticipated return to Australia may well be relevant to its exercise. Here, there was an unexpected event, namely the obviously significant job offer. Mr Selway was entitled to ask the Tribunal to have regard to that circumstance. As the Tribunal recognised at [34] of its reasons, the circumstances prompting an earlier return to Australia than anticipated may well be relevant to the exercise of the discretion. The examples it gave from earlier decisions (earlier immigration following a violent robbery, the deterioration of a wife’s disease, and the reduction in salary producing marital pressure) are not really different in kind, but only of degree, from Mr Selway’s circumstances. In each instance, the early arrival in or return to Australia was prompted by personal circumstances. The Tribunal in those cases correctly, in my view, had regard to the reasons for that earlier arrival in or return to Australia. In this matter, too, there is a clear and unexpected event which prompted Mr Selway’s earlier return to Australia than he intended. It may not have been of the same personal significance as the events considered in those other decisions, but it was nevertheless an important personal circumstance. I think the Tribunal’s approach of discounting that circumstance because his decision to accept the job was within his “complete control” and because his recruitment did not, on its own cause a problem for Mr Selway in “his relationship with his motor vehicle” was erroneous. Whether that involved an error on a question of law I do not need to finally determine “
A recent example of this Tribunal applying the decision in Selway and exercising the regulation 11 discretion in favour of an applicant is Lewis and Minister for Infrastructure and Transport [2013] AATA 283.
Analysis
In this matter, because of his ill-health, the Applicant did not attend at the hearing or give evidence. The Applicant’s case relied upon the documentary evidence and evidence given by his son, Bradley Moore.
The essence of the Applicant’s case is that the Applicant was not able to meet the requisite 12 month period because he had “health issues”. Mr Bradley Moore’s evidence was that his father “had huge pain with swelling of the prostate and bladder problems which forced him home from the UK” and that “his specialist in Perth said he did the right thing in coming back to WA in the extenuating circumstances to get the necessary treatment”.
The difficulty confronting the Applicant’s case is that such evidence is inconsistent with an earlier document completed and signed by the Applicant. In the “Application for Approval to Import a Vehicle” signed and dated by the Applicant on 18 May 2009, the Applicant provided the following relevant information:
· he ticked “yes” to the question “Do you have evidence of not less than 12 continuous month’s overseas ownership and use of the vehicle?”;
· he inserted the date “19 June 2009” in respect of the “Date of your arrival in overseas country where vehicle was first registered”;
· he inserted the date “25 June 2009” in respect of the “Date of first overseas registration of vehicle in your name”;
· he inserted the date “28 June 2010” for the “Date you stopped/intend stopping using the vehicle overseas”; and
· he inserted the date “23 August 2009” for the “Date you are returning/coming to Australia”.
In the absence of any evidence to the Tribunal, it is open to conclude that, when the Applicant returned to Australia on 23 August 2009, only 2 months after arriving in the United Kingdom and purchasing the Vehicle, he did so because that is what he had planned to do all along, and did not do so because he was “forced … home from the UK” as a result of “health issues”.
In this regard, there were before the Tribunal various medical records created by a Dr Maguire relating to the Applicant. One of those records included a statement that the Applicant “had to return to to(sic) WA on the 22 Sept 2009 because of prostate/bladder problems and pain/swelling in groin”. That evidence does not assist the Applicant’s case in this regard because, on the face of it, it is no more than a repetition by Dr Maguire of what was said to him by the Applicant.
During the course of closing submissions, the Tribunal explained to Mr Bradley Moore, on behalf of the Applicant, that there appeared to be nothing in the material before the Tribunal that explained this apparent inconsistency and that, in the absence of a satisfactory explanation, the Tribunal would likely find the facts to be in accordance with the document signed by the Applicant in 2009. The Tribunal further explained to Mr Bradley Moore that, whilst not the only way, the best way for the Applicant to do this was to give evidence. The Tribunal made it clear to Mr Bradley Moore that, due to his illness, the Applicant could give evidence by telephone if he wished to do so.
The Tribunal then asked Mr Bradley Moore whether he wished to have an adjournment of the hearing to consider calling further evidence, or whether he wished the Tribunal to make its decision based on the evidence which had been adduced during the course of the hearing. On behalf of the Applicant, Mr Bradley Moore requested, and was granted, an adjournment so that he could discuss the matter with the Applicant.
By email dated 12 September 2014 to the Tribunal, with a copy apparently being sent to the Applicant, Mr Bradley Moore wrote as follows:
“I have discussed Monday(sic) hearing with Allan and this was his comment:
Allan is happy with my comments regarding dates as mentioned some are written wrong & has nothing further to add.
Paperwork to prove his intention to go back & stay in the UK for longer period of time he can’t find his travel plans because its so long ago.
Who would keep these records?
Without your Discretionary Approval the car here in WA will have to be CRUSHED.
The government is now looking at easing restrictions on imported cars so this maybe relevant in the future.”
On 16 September 2014, an Administrative Support Officer of the Tribunal emailed Mr Bradley Moore, referring to his email of 12 September 2014, and enquired as follows:
“Please confirm that the effect of this email is that the Applicant does not wish to give evidence.”
By email dated 16 September 2014, again apparently copied to the Applicant, Mr Bradley Moore responded in the following terms:
“Yes. Alan is happy that I have cover(sic) everything.”
The Tribunal therefore finds, on the evidence, that the Applicant’s return to Australia on 23 August 2009 was as he always planned it to be, and not as a result of any “health issues” having “forced him home from the UK”.
The Applicant’s case was also to the effect that the Applicant would have returned to the United Kingdom to complete the requisite 12 month period but for his continuing ill health.
However, again the evidence does not support the Applicant’s case.
In this regard, another letter from Dr Maguire stated that upon the Applicant’s return from the United Kingdom in September 2009, he was treated for the following conditions:
“1. Bladder infection: severe requiring antibiotics
2. Testes swelling/hernia
3. Prostate swelling
He requires ongoing treatment in the 2009 period.”
The only entries in the letter for 2010 or for the first half of 2011 are as follows:
“29/07/2010 Obesity (BMI >30)
02/01/2011 Reflux, Oesophageal … 1/11 breath test neg”
For 11 July 2011, there is reference in the letter to a benign prostative hypertrophy and, for 10 October 2011, there is the following note:
“Cystoscopy … neg no outflow – obstruction – 10/11”
Put simply, the Tribunal has received no evidence which provides a satisfactory explanation as to why the Applicant could not/did not return to the United Kingdom in 2010 through to mid 2011 to complete the requisite 12 month period.
In those circumstances, applying the principles articulated by Mansfield J in Selway, the Applicant has not established facts which warrant the exercise of the regulation 11 discretion in his favour.
This conclusion is fortified when one has regard to the fact that this is not a case of an Applicant falling just short of the requisite 12 month period, but rather is a case where the Applicant only satisfied approximately one-sixth of that period.
For the sake of completeness, I note that the Applicant also relied upon an emotional attachment to the Vehicle (it being something from which he derived pleasure at a time of his life where he was having to deal with serious ill health) and the fact that the Vehicle was now in Western Australia and would have to be destroyed if approval was not forthcoming. Applying Selway, neither of those reasons, either alone or taken together, or even considered along with all the other facts of this matter, cause me to exercise the regulation 11 discretion in favour of the Applicant.
For these reasons, the reviewable decision is to be affirmed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
...(Sgd) T Freeman............................
Associate
Dated 30 September 2014
Date of hearing 8 September 2014 Advocate for the Applicant Mr B Moore Counsel for the Respondent Mr C Hawke Solicitors for the Respondent Mr J Phug
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